The Departures by the Privy Council and the Caribbean Court of Justice

A. Background: Pratt v AG

The first case, which foreshadows the wider path taken by the Judicial Committee of the Privy Council, is the 1993 decision in Pratt v AG.^[507] In this case, the Board decided that a period of detention on death row longer than five years from the date of conviction could amount to cruel and inhuman treatment and punishment, requiring the commutation of a death sentence to life imprisonment.

This is striking because international procedures, such as petitions to the Commission, are the by-product of an unincorporated treaty and have no status or binding effect in the domestic law of Jamaica. Thus Pratt allowed international legal processes to have real and meaningful consequences under domestic law, without explaining why. The Board also opened up a new front in the death penalty battle - the international legal front. This is because referring a case to an international legal body, such as the Commission, likely would extend a prisoner’s detention under sentence of death beyond the five year limit, and therefore could represent the difference between life and death.

B. Thomas v Baptiste

In 1999, the Privy Council handed down its decision in the case of Thomas v Baptiste.^{[509] [510] This case arose in response to instructions by the government of Trinidad and Tobago which imposed strict time limits for referral of petitions to international bodies like the Inter-American Commission on Human Rights.}

Of interest for present purposes are the passages of the judgment that deal with the question of whether there is a right to conclude international petition processes in the first place. The government submitted that there could be no such right on the part of the appellants under the laws of Trinidad and Tobago because these international petition processes were available only through an unincorporated treaty. The Board rejected these arguments and went to great lengths to articulate the basis for a right to conclude international petition processes. The Privy Council held that the right to due process, a right expressly protected by the Constitution of Trinidad and Tobago and by the common law, encompassed the right to conclude international petitions. Referring to the due process clause in the Constitution, Lord Millett held that it �includes the right of a condemned man to be allowed to complete any appellate or analogous legal process that is capable of resulting in a reduction or commutation of his sentence before the process is rendered nugatory by executive action.'^[512]Although the Privy Council formally endorsed the position that unincorporated treaties cannot give rise to rights or obligations under domestic law, nevertheless, their Lordships included international petition processes under the due process protections available under the law of Trinidad and Tobago:

It is the general right accorded to all litigants not to have the outcome of any pending appellate or other legal process pre­empted by executive action.

In other words, the Board viewed the right to exhaust international processes as being one arising under the common law or domestic legal system, not under international law. Lord Millett justified this determination by referring to the way that the Inter-American Commission processes could, in relation to Trinidad and Tobago, result in a binding determination by the Inter-American Court of Human Rights.^[514]

The difficulty with this decision, however, is that the Board nowhere explains how a non-binding Commission process that is initiated and concluded entirely under international law, and at no point is included under the laws of Trinidad and Tobago, can give rise to a legal right under domestic law. The Board’s reference to the binding nature of the Inter­American Court judgments is also puzzling because such judgments bind the state as a matter of international law only. No decision of the Inter­American Court can have binding effect, or be enforceable, upon any individual in Trinidad and Tobago until that decision, as an international act, has first been transformed and made part of the law of the land.

Some of these difficulties are highlighted in the strong dissent of Lords Goff and Hobhouse, who point out that the only laws protected by the Constitution and common law are the laws of Trinidad and Tobago, not international law.^[515] By requiring domestic organs to await the conclusion of international petition processes, their Lordships argue, the majority of the Board allows these international legal processes to have domestic effect without any act of incorporation by Parliament.

C. Neville Lewis

The Privy Council pushes this idea further in the 2000 Jamaican case of Neville Lewis.^[516] This case is widely known in the Commonwealth Caribbean for its innovative interpretation of the meaning of the right of due process (�protection of the law’) in relation to the Jamaican Privy Council (the mercy committee). However, attention is also merited for the way in which the case extends the Board’s interpretation of the common law rules regarding use of unincorporated treaties. In Lewis, the Board held that when exercising the prerogative of mercy, the Jamaican Privy Council must provide a fair and proper process. This requirement for fair and proper process was grounded in no small part upon (1) Jamaica’s status as a party to the American Convention on Human Rights and the (2) decisions of the Inter-American Court of Human Rights.^[517] This is surprising because the American Convention was, and remains, an unincorporated treaty under the law of Jamaica. As a result, neither the American Convention nor the judgments of the Inter-American Court of Human Rights (to whose jurisdiction Jamaica had not consented), could have any binding force in Jamaican law.

Also striking is the way in which the provisions of the American Convention and the subsequent interpretative jurisprudence of the Inter-American Court are introduced into the judgment of the Board. They are introduced in passing, without comment, almost as a non sequitur. In a passage in which the Board discusses the proposition that a state’s �domestic legislation should as far as possible be interpreted so as to conform to the state’s obligation under...a treaty,’ the American Convention and its related jurisprudence is casually invoked.^[518] The Board moves directly from consideration of a common law concept — the protection of the law or due process - to looking at death penalty jurisprudence under the American Convention on Human Rights, an unincorporated treaty.

Such a move, however, does not comply with the rules related to the use of unincorporated treaties. No statement is made by the Board about the lack of clarity of a particular legislative provision or legal concept, nor is there a discussion of the two necessary competing legal positions (one which conforms to the treaty obligation and one which does not). In fact, no reference is even made to the relevant provisions of the American Convention — articles 24 or 25 — which guarantee equal protection (including protection of the law) and judicial protection. Instead, the Board turns to article 4 of the American Convention, the provision guaranteeing the right to life, and the related jurisprudence. This is a telling analytical leap: from due process under the common law to the right to life under the American Convention.

In concluding its analysis, the Board decides that the Jamaican Privy Council is required to consider the reports of international human rights bodies (such as the Inter-American Commission on Human Rights), and if it does not accept such reports, to explain why it does not do so.^[519] The Board bases its decision on the concept of �protection of the law’/�due process’ that is contained in section 13 of the Jamaican Constitution and in the common law. Following the Trinidadian decision of Thomas v Baptiste, the Board decided that due process rights can develop over time and come to include new processes, including international ones. But it goes even further here, determining that there is a right to conclude the processes of the Inter-American Commission, a body without the competence to make binding decisions which operates entirely under unincorporated treaties and which is not backed, in the case of Jamaica, by the Inter-American Court of Human Rights.

D. Reyes, Fox and Hughes

The next three cases, the trilogy of Reyes, Foxand Hughes, deal with the actual form of death sentence, namely, mandatory capital punishment.^[520] What is interesting in the present context is how the Belizean case of Reyes v R, which sets out the rationale for finding mandatory capital punishment unconstitutional, bases its reasoning to a significant extent upon international human rights norms.

The central issue in Reyes was whether the mandatory death penalty for Class A murder amounted to inhuman or degrading punishment. The Board addressed this question in four stages. Firstly, the Board established that murder is an offence that varies widely in its culpability.^[521] Secondly, the Board set out at length relevant international human rights developments, both in terms of human rights declarations and treaties, which protect the individual from cruel and inhuman treatment and punishment.^[522] Within this second stage, the Board also commented upon the facts that (1) Belize, when a dependent territory of the United Kingdom, was subject to the European Convention on Human Rights (from 1953—81), and (2) that in drafting the human rights provisions of Belize’s Constitution �heavy reliance was placed on the European Convention.’^[523] Thirdly, the Board outlined the modern, generous and purposive approach to constitutional interpretation, an approach that requires the Court �to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society.’^[524] It is within this third stage, when deciding what contemporary protections are provided by Belize’s human rights framework, that the Board returns to the effect of, inter alia, the European Convention upon Belize. Although noting that the Convention was never expressly incorporated into the laws of Belize, the Board suggests that the �rights’ available under it could not be diminished as a result of Belize’s independence.^[525]

This suggestion that Belize’s independence Constitution was not meant to diminish rights available during dependency is striking for several reasons. It assumes, incorrectly, that European Convention rights were somehow available to the citizens of Belize prior to independence, even though the Convention had never been transformed into the laws of Belize or even transformed into the laws of the United Kingdom itself. Without such transformation the European Convention could have no legal effect in domestic law. Further, the Board suggests that such �rights’ somehow became part of the permanent law of Belize, so that even if a later government decided to sever its treaty obligations (which Belize in fact did upon independence), it would somehow remain subject to them as part of the domestic law. How such a situation could arise under either international law (which recognizes and allows for withdrawal from a treaty), or the doctrines of parliamentary or constitutional supremacy, is never explained.

In the fourth and final stage of the Board’s reasoning, their Lordships examine the meaning of the phrase �inhuman or degrading punishment or other treatment’ under the Belize Constitution and in the jurisprudence of both domestic and international tribunals. The latter jurisprudential references are all comparative in nature, with the Board analysing the reasoning of other authorities from across the globe for persuasiveness. None of these references are suggested to be binding and thus the Board’s analysis here is fully compatible with the rules regarding use of international law by domestic tribunals.^[526] However, it may be no coincidence that the final decision examined by the Board is one under the European Convention, the 1989 case of Soering v UK.^[527] This latter decision provides the ultimate rhetorical link in the Board’s judgment because it implicitly, and naturally, ties Belize’s suggested pre­independence human rights status with the more recent jurisprudence of the European Convention.

In this way, the Reyes case is particularly fascinating in terms of its use of international law. Many of its premises are implicit, rather than explicit. The decision could be justified as falling entirely under the traditional rules regarding use of international law, where international legal materials are only used as persuasive, not binding authority. In fact, the ratio of the Board’s decision can be said to rest upon its own interpretation of the common law meaning of the term �inhuman or degrading punishment or other treatment.’ However, the reference to Belize’s European Convention obligations prior to, and possibly subsequent to, independence may challenge such an analysis.

E. Boyce v R

Moving forward to 2004, the Board returns to the death penalty and the role of international law in the trilogy of Boyce v R, Matthew v State, and Watson v R.^[528] The majority decision in Boyce and Joseph is the leading one in the trilogy on the issue of the use of international law within the domestic sphere. The reasoning of this decision can be summarized very succinctly: (1) under Barbadian law the Constitution is supreme, (2) section 15(1) of the Barbados Constitution does not allow a person to be subject to an inhuman or degrading punishment, (3) but section 26 of the Constitution provides that no existing law shall be held to be inconsistent with, inter alia, section 15; therefore (4) since the mandatory death penalty is an existing law, it remains valid.^[529]

However, in coming to this decision the Board also makes clear that but for the effect of its existing laws clause, Barbados’s mandatory capital punishment would be unconstitutional as inhuman and degrading punishment as well as would likely violate its international human rights obligations.^[530] Thus, we find juxtaposed in this case two clearly incompatible obligations, one constitutional and the other conventional. But since each exists in a different sphere of law — domestic law and international law — there is no conflict of law. The rules of each sphere determine legality and so in domestic law the mandatory form of capital punishment must remain lawful as an existing law.

Generally speaking, it can be argued that this decision reinstates the traditional view of the role of international law in the jurisprudence of the Privy Council. For instance, the Board, as it did in Reyes, refers to the fact that Barbados was subject to the European Convention on Human Rights prior to independence. However, unlike in Reyes, the majority draws a clear distinction between the role of the Convention at the international level and the role of the Constitution in domestic law. The Board held that the Convention was only binding upon the UK as a matter of international law, whereas the Constitution is supreme and binds the people of Barbados.^[531] This is a clear rejection of the kinds of arguments about the role of the European Convention on Human Rights that were started in Reyes.

The majority judgment also contains an entire section on international law which deals with Barbados’s ratification of various human rights treaties. This section is interesting both for the fact that it exists as a distinct, headed section, and for the fact that the Board is clearly sensitive to criticisms of the way in which international law has been used in previous Privy Council decisions. On the question of the use of international law within the domestic forum, the majority returns to the more traditional position on such matters, the one that has been fairly consistently followed in the House of Lords. Firstly, the Board establishes that �the rights of the people of Barbados in domestic law derive solely from the Constitution.’^[532] This implies a rejection of any kind of �direct effectiveness’ of international human rights treaties. Secondly, the Board held that the only relevance of unincorporated international law is for the purposes of assisting with the interpretation of legislation, including the Constitution, where a provision is ambiguous:

The rights of the people of Barbados in domestic law derive solely from the Constitution. But international law can have a significant influence upon the interpretation of the Constitution because of the well established principle that the courts will so far as possible construe domestic law so as to avoid creating a breach of the State's international obligations. �So far as possible' means that if the legislation is ambiguous (�in the sense that it is capable of a meaning which either conforms to or conflicts with the [treaty]')... the court will, other things being equal, choose the meaning which accords with the obligations imposed by the treaty.^[533]

This is a clear restatement of the �ambiguity test' found in the earlier case law and relied upon by the House of Lords.

A more general point is made about the use of non-national human rights jurisprudence. The Board states clearly that human rights norms, including human rights provisions of constitutions, must change and evolve to match the requirements of a just society at any given time.^[534] This is often expressed by speaking of a constitution as a �living tree' or �living instrument.' However, the Board also makes it clear in Boyce that not all constitutional provisions change and evolve; some, like the existing laws clauses, do not change.^[535] Because of this fundamental distinction, the majority is very critical of the liberal references to international law and general constitutional principles made by the appellants. Their Lordships go so far as to comment:

The “living instrument” principle...is not a magic ingredient which can be stirred into a jurisprudential pot together with “international obligations”, “generous construction” and other such phrases, sprinkled with a cherished aphorism or two and brewed up into a potion which will make the Constitution mean something which it obviously does not.^[536]

This statement appears to reflect disquiet with the way in which, perhaps particularly in death penalty cases, an exceptionally wide- ranging mix of international and comparative law authorities have been used in argument without clarity as to their purpose or potential role.

F. The Caribbean Court of Justice: AG v Joseph

A more recent case in the death penalty jurisprudence of the Commonwealth Caribbean has come not from the Privy Council, but rather from the Caribbean Court of Justice (CCJ). In 2006 the CCJ heard an appeal in the case of the AG v Joseph on the issue of whether the Barbados Privy Council (the mercy committee) was subject to judicial review as well as whether it was required to await the conclusion of international human rights petition processes, and to consider the reports of those bodies, before making its recommendation in relation to the exercise of the prerogative of mercy.^[537] In their six concurring opinions, the judges of the CCJ upheld the right of the respondents to have their international petitions considered on the basis of the doctrine of legitimate expectation. Interestingly, in doing so, the Court rejected the justifications of Thomas v Baptiste and Neville Lewis, which anchored the right to await the conclusion of international petition processes on an expanded right to due process. In fact, several of the judges of the CCJ firmly criticized both the jurisprudence and the motivation of the Privy Council in the latter two cases.^[538] Importantly, these criticisms were related to the Privy Council’s application of the common law rules regarding the use of international law.^[539]

But one of the judges, Wit J, went a step further than his colleagues. He did not simply criticize the decisions of the Privy Council and the delaying tactics of the Inter-American system;^[540] he criticized the common law theory of dualism itself. Admitting that his legal training in a civil law system made the dualist system of the relationship of international law and municipal law seem strange to him, Wit J went so far as to argue against the entire doctrine. He pointed out that the supposed dichotomy between the legislature and the executive with regard to law-making is false. Parliament can make law directly for the people, but so too can the executive. As a result, it should not be impermissible for the executive to have law making powers in other areas, such as through treaties.^[541] As a result, Wit J argued that unincorporated treaties may create, but not infringe or diminish, rights.^[542] This judgment is fascinating and sows the seeds for reconsideration of the relevance of the dualist doctrine in the Commonwealth Caribbean. However, for the present Wit J’s approach did not attract the support of his colleagues on the bench.

Despite rejecting the Privy Council’s approach, the CCJ obtained the same result by deciding that the doctrine of legitimate expectation grounds the right to exhaust international petition processes, and does so without violating the dualist perspective of the role of international law. Legitimate expectations are said to arise and to be justifiable in the case of the respondents as a result of several factors: (1) Barbados’s ratification of the American Convention on Human Rights (making the state bound by Convention obligations as a matter of international law); (2) the positive statements made by the executive evincing an intention or desire to abide by that Convention, including statements made in Parliament; and (3) the practice of the Barbados government of giving an opportunity to condemned men to have their petitions to international human rights bodies processed before proceeding to execution.^[543] These three factors lead de la Bastide P and Saunders J to conclude that the �respondents had a legitimate expectation that the state would not execute them without first allowing them a reasonable time within which to complete the proceedings they had initiated under the ACHR by petition to the Commission.’^[544] This result, they argue, upholds the doctrine of division of powers and enhances the protections afforded to human rights.^[545] In this way the CCJ recognized, and attempted to avoid, the inconsistencies in the death penalty jurisprudence of the Privy Council regarding use of international law in domestic courts.

It may nevertheless be argued, however, that the decision of the CCJ falls prey to the same criticisms it makes of the jurisprudence of the Privy Council. Under a strict dualist understanding of the relationship of international law and municipal law, it is difficult to see how one could have a legitimate expectation about a process which is not part of the domestic legal system. As discussed earlier, international legal processes are binding in the international legal sphere but have no binding force or effect in domestic law. Under the constitutions and laws of the Commonwealth Caribbean �law’ is defined as the statutory and common law of that jurisdiction. �International law’ is not included in the term and, although there may be some room for manoeuvre in relation to customary international law, one would be hard put to consider any part of an unincorporated international treaty as being part of the domestic law per se. Further, it is assumed that a legitimate expectation must relate to processes established, or at least recognized, by domestic law. It would seem difficult to conceive of a legitimate expectation arising in relation to entirely non-legal processes.^[546] It is to be seen if, or how, the CCJ will develop this doctrine of legitimate expectation in the future. However, for the present, the decision of the CCJ does little to resolve the difficulties created by the jurisprudence of the Privy Council.

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